Citation Nr: 9817418
Decision Date: 06/05/98 Archive Date: 06/15/98
DOCKET NO. 97-06 013 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York
THE ISSUE
Entitlement to service connection for residuals of exposure
to Lewisite or mustard gas, including keratitis, asthma, a
skin disorder, congestive heart failure, a blood pressure
disorder, diabetes, arthritis, a bone disorder, a liver
disorder, a neurologic disorder, impotence, and alcoholism.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Mark E. Goodson
INTRODUCTION
The veteran served on active duty from August 1940 to October
1945. This matter comes to the Board of Veterans’ Appeals
(Board) on appeal from a March 1996 decision by the RO that
denied service connection for keratitis, asthma, a skin
disorder, congestive heart failure, a blood pressure
disorder, diabetes, arthritis, a bone disorder, a liver
disorder, a neurologic disorder, impotence, and alcoholism,
all claimed as residuals of exposure to mustard gas or
Lewisite.
REMAND
The veteran and his representative contend that the veteran
has disabilities, including keratitis and asthma, as
residuals of inservice exposure to mustard gas and/or
Lewisite. See 38 C.F.R. § 3.316 (1997). In this regard, the
provisions of M21-1, Pt. III, Para. 5.18 provide that
“[d]evelopment for evidence of full-body exposure to mustard
gas or [L]ewisite is necessary only if the veteran claims
exposure; or claims a mustard gas condition [referring to
certain conditions mentioned in 38 C.F.R. § 3.316, including
keratitis and asthma]; or the veteran's name is included in
the list of test participants.” Here, the veteran’s
allegations regarding exposure to mustard gas and Lewisite
have triggered the development procedures in M21-1.
M21-1, Pt. III, Para. 5.18 further provides:
The Army and Navy have made records
available to the National Personnel
Records Center (NPRC). Do not deny any
claim based on development to the
service department prior to April 1,
1992, which failed to confirm
participation in any field or chamber
tests. Redevelop to NPRC before making
a final decision on these claims.
Refer cases with unresolved questions
to the Director, Compensation and
Pension Service (212C), for an advisory
opinion.
* * *
Prior to the early 1950s, information
about a person's participation in any
kind of testing by the [United States]
Army was placed in the individual's
service medical records. These records
are stored at the NPRC and can be
obtained by submitting a VA Form 3101,
Request for Information.
Here, the veteran’s NPRC records were obtained by VA prior to
April 1992. (Notably, during the February 1997 RO hearing
the veteran said that “immediately” after his exposure to
gas in February, March, and April 1941 he received treatment,
yet there are no treatment records from 1941 in his service
medical records.) Although it appears from an undated letter
received at VA in July 1995 that NPRC was asked by the
veteran’s Senator to investigate and attempt to verify the
veteran’s participation in chemical testing, it is not clear
that the RO itself pursued this avenue, especially after
receiving additional information from the veteran, such as
was provided at a February 1997 hearing when the veteran
first identified Aberdeen Proving Grounds and Ft. Miles as
places where he participated in testing. Thus, a remand is
warranted for the RO to again pursue such development in
light of the newly received evidence from the veteran.
38 C.F.R. § 19.9 (1997). Such development is also suggested
by the fact that both VA and the Department of Defense have
ongoing projects to consolidate information about testing.
59 Fed.Reg. 42498 (Aug. 18, 1994).
M21-1, Pt. III, Para. 5.18 further provides that,
simultaneous with the NPRC development, the RO should contact
the U.S. Army Chemical and Biological Defense Agency (now the
U.S. Chemical and Biological Defense Command (CBDEFCOM)). In
asking CBDEFCOM for assistance, the RO should provide “as
much information as possible including the service number,
Social Security number, date and location of test, type of
test, and the unit to which the veteran was assigned.” Id.
Here, the RO contacted CBDEFCOM in about October 1993, but to
no avail. However, at that time, the veteran had indicated
that he had been exposed only during basic military training
at Ft. Bragg, North Carolina. A July 1994 response from
CBDEFCOM suggests that such activity during basic military
training was likely tear gas or chlorine gas training.
Nevertheless, as noted above, the veteran thereafter provided
more information as to the alleged exposure. He indicated
that he had been exposed to mustard gas and Lewisite on three
occasions--in February, March, and April 1941--and at two
locations: Aberdeen Proving Grounds, Maryland, and Ft.
Miles, apparently in Virginia. See transcript of the
veteran’s February 1997 RO hearing testimony, pages 2, 5-7.
However, the RO has not forwarded this information to
CBDEFCOM, notwithstanding that CBDEFCOM’s March 1994 letter
to the RO indicated that CBDEFCOM could search for
information regarding the veteran’s claimed exposure if it
were provided with such details. Moreover, it does not
appear that the RO sent the veteran’s Social Security number
to CBDEFCOM. Thus, the RO should send CBDEFCOM the detailed
information provided by the veteran, and his Social Security
number.
This case is REMANDED for the following actions:
1. The RO should ask NPRC to send any
information regarding chemical testing
experienced by the veteran, and copies
of the veteran’s complete service
medical records, including clinical,
treatment, and hospitalization records.
In doing so, the RO should inform NPRC
that the veteran seeks service
connection for residuals of exposure to
mustard gas and Lewisite; and should
send NPRC all the information necessary
for such a search, including pertinent
information from the veteran’s “Record
and Report of Discharge from the Army,”
the Morning Reports submitted in July
1995, the veteran’s June 1994 statement,
the February 1997 RO hearing transcript,
and the veteran’s Social Security
number. All materials obtained from
NPRC should be associated with the file.
2. The RO should contact the U.S.
Chemical and Biological Defense Command
(CBDEFCOM) and ask it to search for
information regarding the veteran’s
claimed exposure to mustard gas or
Lewisite. The RO should send CBDEFCOM
the veteran’s “Record and Report of
Discharge from the Army,” the Morning
Reports submitted in July 1995, the
veteran’s June 1994 statement, the
February 1997 RO hearing transcript, the
veteran’s unit(s) of assignment at the
time of the alleged exposure, and the
veteran’s Social Security number. All
materials obtained should be associated
with the file.
3. Thereafter, the RO should take
action on the veteran’s claim of
entitlement to service connection for
residuals of exposure to mustard gas or
Lewisite. In so doing, the RO should
address the issue of whether his claim
is well grounded. If his claim is found
to be well grounded, then the RO should
assist the veteran in the development of
the claim. This may include a medical
examination for an opinion as to the
etiology of his claimed disorders,
including a determination, for each
disability identified, as to whether it
is at least as likely as not
attributable to military service,
including inservice exposure to Lewisite
or mustard gas. If any benefit sought
is denied, a supplemental statement of
the case (SSOC) should be issued to the
veteran and his representative, which
addresses all evidence submitted since
the August 1997 SSOC, including the
February 1997 VA medical evidence
submitted by the veteran directly to the
Board. See 38 C.F.R. § 20.1304 (1997).
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder shall be returned to this Board for
further appellate review. No action is required by him until
he receives further notice. The purposes of this remand are
to procure clarifying data and to comply with governing
adjudicative procedures. The Board intimates no opinion,
either legal or factual, as to the ultimate disposition of
this appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MARK F. HALSEY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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